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Rethinking Patent Law’s Uniformity Principle

Rethinking Patent Law’s Uniformity Principle. Craig A. Nard and John F. Duffy Patents and Diversity in Innovation University of Michigan Law School 29-30 September 2006. Issue and Proposal . Issue : What is optimal amount of centralization in patent law’s appellate architecture?

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Rethinking Patent Law’s Uniformity Principle

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  1. Rethinking Patent Law’s Uniformity Principle Craig A. Nard and John F. Duffy Patents and Diversity in Innovation University of Michigan Law School 29-30 September 2006

  2. Issue and Proposal • Issue: What is optimal amount of centralization in patent law’s appellate architecture? • Choice between centralization and decentralization cannot be answered with polar solution • Pre-1982 characterized excessive decentralization • Post-1982 characterizes excessive centralization • Optimization • Proposal: In addition to CAFC, grant appellate jurisdiction to at least one extant circuit court

  3. Federal Circuit Experiment • Structural Constraints • Power of precedent • No benefit of sister-circuit jurisprudence • No competition from peers • Poor mechanism to gather information and test innovations • Self Induced • More adroitly deploy common law • More receptive to academic literature and district court complaints

  4. Centralization v. Decentralization Issue has Broad application • Design of gov’t institutions • Federalism • International Law and Antitrust Law • Theory of business organizations • Theory of R&D • Across wide range of institutions, similar arguments in support of centralization and decentralization • Both centralization and decentralization have benefits and costs

  5. Costs and Benefits of Centralization and Decentralization in Patent Law • Competition • Judges value reputation and quality of opinions • Check on poor decisions and induce more complete and thoughtful rationales • Imbue confidence if a shared decision is reached independently • Cost: Strategic behavior, namely forum shopping

  6. Costs and Benefits of Centralization and Decentralization in Patent Law, cont. • Information Gathering and Sharing • Appellate system relies on lawyer arguments • Multiple information gathering points allows for more complete and reliable data • Litigants and courts more likely to be creative, cite and rely on historical materials, academic literature, etc. • Allow for more appellate arguments, more cases, more factual scenarios, and more complete picture of particular issue • Percolation and teeing up for Supreme Court • Cost: too much decentralization leads to less expertise – the pre-1982 problem

  7. Costs and Benefits of Centralization and Decentralization in Patent Law, cont. • Induce Innovations • Decentralization fosters innovation, experimentation, trial-and-error, etc. • Multi-circuit model allows for innovations to be tested • Cost: Need baseline of concentrated knowledge – pre-82 there were too many cooks in the kitchen

  8. Challenges and Concerns • Forum Shopping • Appellate jurisdiction randomly assigned post-district court filing • Claim Construction Disuniformity • Potential for disuniformity/duopoly • Uniformity fostered by issue preclusion and stare decisis • Choice of Law

  9. Thank you

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